Canada: Pipeline Opponents Face Significant Obstacles In Securing Injunctive Relief

With the federal government recently approving major pipeline projects, it is expected that environmental and other special interest or lobbying groups will commence actions in an attempt to prevent or delay those projects from proceeding, which may include applying for injunctive relief. Those opponents face significant obstacles in obtaining such relief.

While the test for an injunction is well settled and set-out in the leading decision of the Supreme Court of Canada (SCC) in RJR-MacDonald Inc. v. Canada (Attorney General) (RJR), there are some interesting aspects of applying that test in the context of proposed pipelines.


While the first branch of the test requires the applicant to establish a serious issue to be tried, that threshold is generally quite low. The SCC in RJR noted that, generally, so long as the application is neither vexatious nor frivolous, the court should proceed to consider the second and third parts of the tripartite test.

The SCC identified, however, three exceptions to the general rule that a court should not engage in a prolonged examination of the merits with respect to the first branch of the test: (i) when the result of the motion will, in effect, amount to a final determination of the action; (ii) when the question of constitutionality presents itself as a simple question of law alone; and (iii) the court kept open the possibility for an exception in non-Charter cases in which the factual record is largely settled prior to the application being made.

In the context of injunctions relating to pipelines, there is another important factor to consider when determining if there is a serious issue to be tried. A number of decisions have held that there is no serious issue to be tried given that there is often a robust regulatory process that has not only approved a pipeline but also had jurisdiction over it. In those cases, the courts have found that injunctive relief is nothing more than a collateral attack on the regulatory decision-making process and denied that relief.

Given the time, expense and related approval process involved with pipelines, in considering an injunction against a pipeline, the court should engage in a closer examination of the merits as granting an interim injunction would practically, in many cases, amount to a final determination.


The second branch of the test requires the applicant to establish irreparable harm, which is typically the most difficult to establish. Generally speaking, the applicant must establish injury that is beyond the possibility of repair by money.  It must establish harm of such a nature that no fair and reasonable redress may be had unless injunctive relief is granted and the refusal to grant the injunction would be a denial of justice. "Irreparable" typically refers to the nature of the harm suffered rather than its magnitude; it means harm that either cannot be quantified in monetary terms or that cannot be cured.

Many injunction applications fail on this branch of the test largely because damages are often an adequate remedy and the evidence of irreparable harm tendered is often speculative in nature. In the context of challenges to pipelines, applicants frequently make allegations of health and other claimed environmental consequences.  Those allegations are often speculative in nature and do not satisfy the evidentiary requirements for this branch of the test.

It should be emphasized that the fact that damages could be difficult to calculate does not, in itself, support a finding of irreparable harm. Mere difficulty in calculating damages does not necessarily mean that damages are not an appropriate remedy.


The final branch of the test, known as the balance of convenience branch, requires a determination as to which of the two parties will suffer the greater harm from the grant or refusal of an interlocutory injunction pending the disposition of the matter at trial on the merits.

The expenditure of money, time and commercial activity, including obtaining regulatory approvals, has been recognized by the courts as an important consideration in denying injunctive relief. This is particularly so in the context of major pipelines. For example, in Dastous v. Canadian Natural Resources Limited, the court noted that an injunction would have the result of delaying a substantial development project — a project that, at full production, would supply hundreds of thousands of barrels per day of crude oil over a significant period of time. In those circumstances, the court found that the balance of convenience favoured the denial of the injunction since to grant it would undermine a project that was "critical in sustaining Canada's oil needs for the future."

In addition, it is a common and well established practice that an applicant must give an undertaking to be responsible for, and pay forthwith, any damages suffered by the respondent if it is ultimately determined that an interim injunction should not have been granted. A requirement to post an undertaking is codified in some jurisdictions. The lack of an undertaking can be fatal to such applications.

Although, in exceptional circumstances, the court can relieve against the requirement to post an undertaking, the underlying purpose of an undertaking is to protect a respondent from the damages and costs arising from the granting of an interlocutory injunction which is ultimately set aside at trial. The courts have recognized the importance of giving an appropriate, meaningful and enforceable undertaking as a prerequisite to obtain injunctive relief. Moreover, the undertaking must be provided in advance of the hearing to allow the respondent time to assess the scope and adequacy of the undertaking. In those circumstances, given the significant investments at stake, the courts would likely require a sizable undertaking to be meaningful in the pipeline context given the huge monetary amounts involved.  That obstacle would likely be overwhelming for most applicants to provide.


While opposition by way of the commencement of court proceedings may occur in connection with one, some, or all of the proposed pipelines, opponents will face very difficult obstacles in obtaining injunctive relief from the court, especially in circumstances where regulatory and other approvals have approved the pipelines.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Events from this Firm
12 Sep 2017, Seminar, Toronto, Canada

Please join us as we take an in-depth look at the legislation and the impact on the industry.

14 Sep 2017, Seminar, Toronto, Canada

Change, stress and uncertainty are ever]present factors in todayfs legal environment, and specific aspects about the practice of law make it difficult to thrive in the profession long term. Luckily, there are specific research]based strategies that have been shown to help lawyers thrive and lead to more effective ways to manage stress and pressure.

5 Oct 2017, Seminar, Toronto, Canada

Blakes is proud to host our New to In-House Series, designed to bring together junior and mid-level in-house counsel for a candid exchange of insights to highlight and address some of the challenges and opportunities facing in-house lawyers in their roles today.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.